# Devoney v. Retirement Board of the Policemen's Annuity & Benefit Fund > Illinois Supreme Court · April 18, 2002 · 199 Ill. 2d 414 URL: https://www.frixlaw.com/law-library/cases/9744878 ## Case - **Full name:** WILLIAM DEVONEY, Appellant, v. THE RETIREMENT BOARD OF THE POLICEMEN’S ANNUITY AND BENEFIT FUND FOR THE CITY OF CHICAGO, Appellee - **Court:** Illinois Supreme Court - **Decided:** April 18, 2002 - **Citations:** 199 Ill. 2d 414; 264 Ill. Dec. 95; 769 N.E.2d 932; 2002 Ill. LEXIS 314 - **Precedential status:** Published - **Opinion:** Dissent by Freeman - **Judges:** Harrison, McMorrow, Freeman, Kilbride - **Cited by:** 49 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9744878 ## How later opinions describe it (automated extraction) - explaining that the purpose of 40 ILL. COMP. STAT. 5/5-227 is to “ ‘discourage official malfeasance by denying the public servant convicted of unfaithfulness to his trust the retirement benefits to which he otherwise would have been entitled’ ” - explaining that the purpose of 40 ILL. COMP. STAT. 5/5-227 is to "`discourage official malfeasance by denying the public servant convicted of unfaithfulness to his trust the retirement benefits to which he otherwise would have been entitled'" - holding a police officer’s felony mail fraud conviction related to his work as an officer, when he struck up friendship with co-felon while working as a police officer - finding the nexus where an officer’s participation in mail fraud was the product of his status as a law enforcement official ## Opinion text JUSTICE FREEMAN, dissenting: The issue in this case is whether Devoney has forfeited his pension benefits, pursuant to section 5 — 227 of the Illinois Pension Code (40 ILCS 5/5 — 227 (West 1998)), because of his conviction for mail fraud. The majority answers in the affirmative, finding a connection between Devoney’s status as a police officer and his conviction for mail fraud. Because I believe the majority has misconstrued the nexus requirement of section 5 — 227, I respectfully dissent. DISCUSSION Section 5 — 227 provides in part: “None of the benefits provided for in this Article shall be paid to any person who is convicted of any felony relating to or arising out of or in connection with his service as a policeman.” 40 ILCS 5/5 — 227 (West 1998). Devoney stands convicted of mail fraud, a felony. See 18 U.S.C. § 1341 (1994). The question here is whether the mail fraud related to or arose out of or in connection with Devoney’s service as a police officer. In interpreting the language of a statute, the primary goal of this court is to ascertain and give effect to the intention of the legislature. Barnett v. Zion Park District, 171 Ill. 2d 378, 388 (1996). This court must seek the legislative intent primarily from the language used in the statute. Yang v. City of Chicago, 195 Ill. 2d 96,103 (2001); Barnett, 171 111. 2d at 388. Where the language of the statute is unambiguous, the only legitimate function of this court is to enforce the law as enacted by the legislature. Henrich v. Libertyville High School, 186 Ill. 2d 381, 391 (1998); Certain Taxpayers v. Sheahen, 45 Ill. 2d 75, 84 , 256 N.E.2d 758 (1970). There is no rule of statutory construction which authorizes this court to declare that the legislature did not mean what the plain language of the statute says. Henrich, 186 Ill. 2d at 391 ; Illinois Power Co. v. Mahin, 72 Ill. 2d 189, 194 (1978). Further, this court must evaluate the statute as a whole, and construe each provision in connection with every other section. Barnett, 171 Ill. 2d at 388-89 , citing Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76, 91 (1992). In the case at bar, the majority finds a connection between Devoney’s mail fraud conviction and Devoney’s service as a police officer. The majority states: “As indicated earlier in this disposition, the conditions which gave rise to Devoney’s conviction originated from his friendship with codefendant David Ballog, Jr. Ballog cultivated his relationship with Devoney because Ballog was a criminal who considered it advantageous to have police connections. Devoney was not naive or unsuspecting about Ballog. In the words of the Retirement Board’s attorney, their relationship was ‘long and unsavory.’ At Ballog’s behest, Devoney had used his position on the police force for Ballog’s benefit in a variety of ways over a protracted period of time. Based upon these circumstances, there was ample ground for the Retirement Board’s finding that ‘but for the fact that Devoney was a Police Officer of high rank,’ he ‘would not have been in a position or selected to participate in the scheme to defraud [which led to his conviction].’ Because Devoney’s participation in the scheme to defraud was the product of his status as a law enforcement official, we believe that the nexus required by section 5 — 227 of the Pension Code [citation] was present.” 199 Ill. 2d at 423. I disagree. First, I note that the majority does not provide support for the assertion that “Devoney had used his position on the police force for BaUog’s benefit in a variety of ways over a protracted period of time.” Perhaps the majority is referring to the district court’s finding that Devoney had interfered with the investigation of a sexual assault aUegedly perpetrated by one of Ballog’s relatives. However, Devoney was not charged with any wrongdoing in connection with the investigation of the sexual assault. As the appellate court observed: “[Devoney] had not been charged with or convicted of any felony related to obstructing justice regarding the sexual assault case, and thus the language of section 5 — 227 precludes us from considering this conduct in determining whether [Devoney] has forfeited his pension benefits. Therefore, [Devoney’s] conduct in obstructing justice in the sexual assault case is irrelevant to our analysis of whether [Devoney] has forfeited his benefits under section 5 — 227.” 321 Ill. App. 3d 1, 6 . Perhaps the majority is referring to some other conduct. Without more information regarding the nature of the conduct involved, I, for one, find it difficult to conclude that the requisite nexus exists. Second, and more importantly, the majority adopts a “but for” standard for the forfeiture of pension benefits. The assumption is that “but for” Devoney’s status as a police officer, Ballog would not have selected him to participate in the scheme. The problem with such an assumption is the generality of its application to any crime involving the participation of the police officer and another individual. The participation of the police officer in a crime that is unconnected to his work on the police force can always be connected to his status as a police officer. For example, it can always be said that an individual who gets to know a police officer and later obtains the officer’s participation in a crime would not have approached the officer but for his status as a police officer. Moreover, the majority’s “but for” standard cannot be reconciled to the plain language of the statute. The first paragraph of section 5 — 227 provides: “None of the benefits provided for in this Article shall be paid to any person who is convicted of any felony relating to or arising out of or in connection with his service as a policeman.” 40 ILCS 5/5 — 227 (West 1998). As the appellate court observed in Cullen v. Retirement Board of the Policeman’s Annuity & Benefit Fund, 271 Ill. App. 3d 1105, 1109 (1995): “the statute clearly contemplates the existence of situations where a police officer could commit a felony unrelated to his law enforcement duties.” In contrast, the second paragraph of section 5 — 227 provides: “None of the benefits provided for in this Article shall be paid to any person who is convicted of any felony while in receipt of disability benefits.” 40 ILCS 5/5 — 227 (West 1998). Thus, in the case of a recipient of disability benefits, the conviction need not relate to, or arise out of, the recipient’s service to the state. The conviction of any felony is sufficient ground for disqualification. If a police officer’s employment status can provide the requisite nexus between the crime and the officer’s service to the state, there will never be a situation where a police officer can commit a felony unrelated to his law enforcement duties. Perforce, the nexus requirement is rendered superfluous. The legislature could simply have used language similar to that found in the second paragraph of section 5 — 227, making the commission of “any felony” ground for disqualification. As the appellate court stated in Cullen: “Surely, if the legislature had wanted the first paragraph of section 5 — 227 to read in the way the Board wishes us to interpret it, it could have used the same language or similar language to that which it used in the second paragraph. Moreover, if the General Assembly did not wish to employ a different standard for denying disability benefits from that of pension benefits, why did it not simply write one paragraph denying all benefits for any felony conviction instead of writing two separate paragraphs that draw distinctions?” Cullen, 271 Ill. App. 3d at 1109 . This court is not at liberty to construe the statute in such a way as to render any part of it superfluous. Sylvester v. Industrial Comm’n, 197 Ill. 2d 225, 232 (2001). The difficulty with the majority’s “but for” standard is magnified when it is applied to other participants in the state’s pension plan. As the majority notes: “The requirement that the conviction relate to or arise out of or in connection with a person’s service as a policeman is not unique to law enforcement. Identical provisions govern members of the General Assembly [citation], participants in the Illinois Municipal Retirement Fund [citation], those in the Municipal Employees’, Officers’, and Officials’ Annuity and Benefit Fund [citation], *** state employees [citation], judges [citation], and others [citation].” 199 Ill. 2d at 418. If, for example, a member of the General Assembly is approached about a crime, say a scheme to defraud a homeowner’s insurance carrier, could it ever be said there was no connection between the scheme to defraud the insurance carrier and the status of the member of the General Assembly? I believe the conclusion would follow that but for the individual’s status as a member of the General Assembly “ ‘he would not have been in a position or selected to participate in the scheme to defraud.’ ” Employment status would always provide the nexus between the crime and the person’s service to the state. CONCLUSION The majority adopts a “but for” standard that equates an individual’s employment status to his service to the state, and requires only a nexus between the individual’s conviction and the employment status. However, the nexus requirement of section 5 — 227 entails more than a connection between the individual’s employment status and the conviction. Were it not so, the legislature could simply have provided that benefits would not be paid to any individual convicted of a felony. The majority’s interpretation of section 5 — 227 renders superfluous the additional provision that the felony relate to or arise out of or in connection with the individual’s service to the state. It also does not reflect the intent of the legislature. It is the province of the legislature to enact laws; it is the province of this court to construe the laws as enacted. This court has no legislative powers; it may not enact or amend statutes. This court cannot restrict or enlarge the meaning of an unambiguous statute. The responsibility for the justice or wisdom of legislation rests upon the legislature. Henrich, 186 Ill. 2d at 394 ; People ex rel. Roan v. Wilson, 405 Ill. 122, 128 , 90 N.E.2d 224 (1950). I understand the desire of the majority to punish Devoney by depriving him of his pension benefits. I sympathize with the majority. However, this court must interpret and apply the statute in the manner in which it is written. This court must not rewrite the statute to make it consistent with the court’s idea of orderliness and public policy. Kozak v. Retirement Board of the Firemen’s Annuity & Benefit Fund, 95 Ill. 2d 211, 220 (1983). Because the “but for” standard adopted by the majority cannot be reconciled to the plain language of the statute, I respectfully dissent. JUSTICE KILBRIDE joins in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9744878. Public record. Not legal advice.